Pubdate: Tue, 14 Oct 2003 Source: San Francisco Chronicle (CA) Copyright: 2003 Hearst Communications Inc. Contact: http://www.sfgate.com/chronicle/ Details: http://www.mapinc.org/media/388 Author: Bob Egelko HIGH COURT LETS STAND RULING OVER MEDICAL POT Doctors May Discuss Option With Patients California's medical marijuana law survived its most serious legal threat Tuesday when the U.S. Supreme Court scuttled a Bush administration plan to punish doctors who recommend the drug to their patients. The justices, without comment, denied review of a ruling by a federal appeals court in San Francisco last October that said doctors and patients have the right to discuss the subject freely, without fear of severe federal penalties against the physicians. The government had sought to revoke the doctors' licenses to prescribe federally regulated narcotics -- vital to many medical practices -- and disqualify them from the Medicare program. Tuesday's action didn't remove all the legal clouds surrounding Proposition 215, the initiative passed by California voters in 1996 that allows patients with cancer, AIDS and other illnesses to use marijuana with their doctor's approval. The federal government, while not challenging Prop. 215 directly, has won a series of court rulings limiting the scope of the measure, the model for laws in eight other states. Federal authorities under Presidents Bill Clinton and Bush have shut down local dispensaries, raided growers and, during the Bush administration, prosecuted medical marijuana suppliers. Federal courts have consistently upheld those efforts, relying on the federal law that bans marijuana and recognizes no legitimate medical use. But those federal measures have succeeded only in somewhat restricting the supply of marijuana. The drug remains widely available to medical patients under programs backed by local authorities, and the state continues to support medical marijuana. Under a new law, California will issue cards that will allow medical marijuana patients to identify themselves to police as legitimate users. Punishment of doctors, on the other hand, could have made Prop. 215 unworkable by making doctors unwilling to recommend marijuana, and thus preventing patients from obtaining it legally. "It would have silenced most doctors because it (would have) put their livelihoods at risk," said Ann Brick, an American Civil Liberties Union lawyer for a group of doctors and patients who challenged the federal policy. Doctors "are our experts, our coaches," said Keith Vines, a San Francisco assistant district attorney and AIDS patient who was a plaintiff in the case. Vines lost 50 pounds and nearly died from a wasting syndrome associated with AIDS and credits medical marijuana with restoring his appetite and saving his life. "If there's a risk that goes along with (using marijuana), I'll accept that risk, because that enabled me to regain the weight and stay alive," he said. "It wouldn't have been available if the federal government had its way, dictating what doctors could say to their patients." Dr. Milton Estes, medical director of the San Francisco Department of Public Health's Forensic AIDS Project and also a plaintiff in the case, said he hadn't seen such a serious federal threat against doctors since the days of illegal abortion, when some physicians were prosecuted for performing abortions. "For a doctor like me who deals with people with a great deal of pain, my work would be significantly curtailed" if the government had won the case, Estes said. After Prop. 215 passed and the government threatened doctors, he said, "I became afraid to bring it up." After Tuesday, "there no longer needs to be fear in anyone's mind, including physicians, that they can openly discuss medical marijuana," said another plaintiff, Judith Cushner, director of Laurel Hill Nursery School in San Francisco. She is undergoing chemotherapy after suffering a relapse of breast cancer and says medical marijuana combats nausea from the therapy and enables her to continue treatment. The Supreme Court's rebuff of the Bush administration was not a nationwide ruling, but it left last year's appellate decision intact in the Ninth U.S. Circuit Court of Appeals, which includes seven states with medical marijuana laws: California, Arizona, Nevada, Oregon, Washington, Alaska and Hawaii. Maine and Colorado, which have similar laws, are in other circuits and are not affected by the ruling. The federal government argued that a doctor's recommendation under California law was the equivalent of a prescription for illegal drugs. Justice Department lawyers said a doctor wouldn't be punished for merely discussing marijuana with a patient as long as the doctor made it clear that the drug was illegal under federal law, that federal authorities considered it dangerous and that the doctor wasn't recommending it. After the high court's ruling, John Walters, director of the White Office Office of Drug Control Policy, warned that the cultivation and trafficking of marijuana remains a federal offense. "It remains the charge of every responsible public official and medical professional to continue to protect the health of American citizens and reduce the harms caused by marijuana and other dependency-producing drugs," he said. The government's arguments failed to persuade federal judges, whose injunctions protecting doctors were upheld last year by the Ninth U.S. Circuit Court of Appeals. That court said the government could prosecute doctors for helping patients acquire illegal drugs, but not for giving medical advice that might allow a patient to obtain marijuana independently. "An integral component of the practice of medicine is the communication between a doctor and a patient," wrote Chief Judge Mary Schroeder in the 3-0 ruling. "The government's policy ... leaves doctors and patients no security for free discussion." She also noted that states, not the federal government, have traditionally regulated the practice of medicine. That is a critical issue in a case pending before a different panel of the appeals court, involving Attorney General John Ashcroft's attempt to penalize doctors who prescribe lethal medication for their patients under Oregon's physician-assisted suicide law. The Supreme Court case is Walters vs. Conant, 03-40. - --- MAP posted-by: Larry Stevens